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A Philadelphia jury has returned a $300,000 award in a defamation action brought by a former Capital Grille bartender who had been fired for sexual harassment and claimed his ex-boss subsequently spread a rumor around town that the bartender had been “fired from every job he ever had for sexual misconduct.” The verdict in Kane v. Rare Hospitality International Inc. included $200,000 in compensatory damages and $100,000 in punitive damages. Attorneys involved in the case said no economic experts were called to the stand by either side during the trial and that nearly all the damages-related evidence presented by 33-year-old Christopher Kane concerned the humiliation, emotional upset and other personal harm he claimed he incurred as a result of the defendants’ slander. Robert Clothier of Fox Rothschild, whose practice focuses on First Amendment matters, said it’s noteworthy that Kane’s case highlighted his emotional injuries rather than his economic losses. “What strikes me is that while this is not a huge verdict, as large verdicts go, it is a significant verdict in light of what appears to be damages that were limited primarily to emotional distress and not economic damages,” Clothier said. In court papers, Kane gave the following version of events leading up to his being fired from Capital Grille, Philadelphia (the business name of which is Rare Hospitality International): Kane began working as a bartender at Capital Grille in January 2001. He claimed that he was regularly applauded for his excellent job performance, but that some of his superiors — including defendant Edward Doherty, who at the time was Capital Grille’s managing partner — frequently demanded that Kane engage in “locker room” humor for the benefit of the customers. Kane said he was encouraged, and sometimes specifically asked, to provide commentary while behind the bar that was decidedly sexual and often misogynistic or homophobic in nature. He further claimed that he was also encouraged by restaurant superiors to come out from behind the bar and give massages to certain female patrons. One Saturday night in November 2002, Kane said in court papers, a husband-and-wife pair of customers asked Kane to introduce them to one of the hostesses on duty. Kane said that after he obliged, the couple and the hostess went to the coatroom and “engaged in some playful frolicking and sexually charged behavior.” Kane said that the following Monday, he was fired but was not given an explanation. In the following weeks and months, Kane claimed in court papers, Doherty told various Capital Grille workers and customers on numerous occasions that the circumstances surrounding Kane’s dismissal from Capital Grille were not surprising, given that “he’s been fired from every job he’s ever had for sexual misconduct.” The defense responded in court papers that prior to the coatroom incident, Capital Grille superiors had warned Kane on several occasions that though he was an entertaining bartender, his conduct was often inappropriate. They also argued that Rare Hospitality International had in place strict anti-sexual harassment policies and that no restaurant manager would have ever asked an employee to violate them. They claimed that Kane was fired for instigating the sexual harassment of a co-worker. They denied that Doherty made any statements to others concerning the grounds for Kane’s previous dismissals from other jobs and stated that any discussions Doherty had about Kane after Kane was fired were privileged and “done in furtherance of promoting [the restaurant's] legitimate business interests.” Kane filed a complaint that included counts of defamation, wrongful termination and invasion of privacy. The latter two counts were struck down in March 2005 by Judge Lisa M. Rau. Kane was represented in the matter by Marc Weinberg and Harry Kane Jr. of Saffren & Weinberg in Jenkintown. Defense counsel in Kane was Jonathan Herbst of Margolis Edelstein in Philadelphia. Neither side wished to comment on pre-verdict settlement negotiations. According to Herbst and Harry Kane (who is Christopher Kane’s brother), the trial was held over the course of roughly three trial days late last month before Judge Marlene F. Lachman. One juror from the eight-member panel in Kane had to be excused, the attorneys said, but both parties agreed to go forward with only seven hearing the case. After about two hours’ deliberations, the jury returned with its verdict. They were polled at 6-1, but Harry Kane said it was not clear whether they were split as to liability, damages or both. Both lawyers said that neither side presented any experts, economic or otherwise. Harry Kane said that Weinberg, who tried the case, called to the stand three “earwitnesses” to Doherty’s allegedly defamatory statements — one was a Capital Grille employee at the time of the incident, the other two were patrons of the restaurant. He said that those witnesses testified that when they asked Doherty about Christopher Kane’s post-firing status, they were told that the bartender had been fired from every job he ever had due to sexually harassing behavior. But a Capital Grille official called to the stand acknowledged that a background check prior to his hiring indicated that Christopher Kane had never been fired from any job before he came to Capital Grille, and Christopher Kane also testified to that effect, Harry Kane said. He also said that Christopher Kane testified about the humiliation of hearing what Doherty had said about him through third parties; about his troubles securing another bartending job for some time after he was fired; and about how the rumors allegedly started by Doherty caused his longtime girlfriend to leave him. “The damages that the jury assessed were for his emotional upset, humiliation” and the like, Harry Kane said. During his time on the witness stand, Doherty denied making the statements in question, according to Harry Kane. Due to a pre-trial stipulation, Harry Kane said, the jury was not told of the specific events that allegedly led to Christopher Kane’s dismissal, but it was generally made aware that Capital Grille claimed he was fired for sexual harassment. According to the Philadelphia common pleas docket, the $200,000 in compensatory damages was against both Rare Hospitality International and Doherty; as for the $100,000 in punitive damages, $40,000 was against the company and $60,000 was against Doherty. Herbst has filed post-trial motions seeking a new trial as to liability and damages. In those papers, he cited a long list of errors the defense feels were committed by Lachman, including her overruling of a defense objection when Christopher Kane was asked during direct examination to discuss his troubles finding a new bartending job after he was fired from Capital Grille. The defense claimed that testimony amounted to pure speculation. First Amendment attorney Clothier — who has in the past represented ALM in various media law matters — noted that under Pennsylvania law, juries in defamation cases are given substantial discretion in assessing damages. Harry Kane said that his brother is currently living in Manayunk and tending bar at Old Original Bookbinder’s in Old City.

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